Krum v Malaysian Airline System Bhd [2004] VSC 185

Supreme Court of Victoria|2004-05-27|Before: OSBORN J

Warsaw Convention Article 17 - `Accident' - Unexpected event - External circumstances - Aeroplane flight - Defective seat - Bodily injury - Sciatica

The plaintiff in this matter claims damages for injury to his back which he alleges was sustained while he was a passenger on Flight MH20 from Kuala Lumpur to Paris on 24 February 2001 ("the flight").

The flight was conducted by the defendant as part of a regular service using Boeing 747 jet aircraft.

The plaintiff departed Melbourne at 4.00 p.m. and after then flying to Kuala Lumpur departed on the next leg of his journey at the equivalent of 2.00 a.m. Melbourne time that evening. At the time of embarkation he had been awake for some 17 hours.

The plaintiff's case is that when he entered the first class cabin of the aircraft at Kuala Lumpur, he was not escorted to his seat by cabin staff but proceeded on his own to seat 2H, which was the seat which he had been allocated.

Upon approaching that seat he found it occupied. He then asked a steward what he should do and was invited to sit in one of two vacant seats 2A and 2C adjacent to but across the aisle from seat 2H.

This he did and after approximately one hour during which period he consumed some light refreshments and a small dose of temazapam, he attempted to recline his seat in order to go to sleep.

When he did so the automatic seat control failed to operate. He drew this situation to the attention of a steward who then located a lever upon the side of the seat which allowed the seat to be reclined either by the steward or by the plaintiff personally (the plaintiff is not certain which occurred).

The upper portion of the seat was then lowered to the fully reclined position.

In this position the seat was not completely horizontal but formed a base upon which a passenger could sleep with the upper portion of the seat angled back from the lower portion of the seat at approximately 160 degrees.

The upper portion of the seat contained a lumbar support being a six inch by six inch fibreglass composite square which was located behind one inch of front padding within the seat. This support was in normal circumstances capable of manipulation to either protrude forwards towards the passenger or be retracted back away from the passenger. It could thus be adjusted to provide an appropriate configuration for sitting and for reclining. It provided either adjustable lateral support when the seat was upright or adjustable horizontal support when the seat was reclining.

In addition the lumbar support was in normal circumstances capable of vertical manipulation (relative to the alignment of the upper portion of the seat) over a distance of four inches from a position one inch above the junction between the lower and upper portions of the seat. This facility again assisted in the provision of comfortable lateral support when the seat was upright and comfortable horizontal support when the seat was reclining.

"1. The seating unit comprising seats 2A and 2C on the flight Kuala Lumpur to Paris on 24 February 2001, had a single electrical malfunction which existed prior to the day of the flight and throughout the flight, and which affected both seats as follows: (a) the reclining function of the seat could not be operated electrically (but it could be operated manually through its full range); and (b) the electrically operated lumbar support function of the seat could not be operated electrically (there being no manual alternative) and was static in the position within its normal range of movement, at which it was left when last operated electrically. 2. The position of the lumbar support in the course of the flight is not known."

Records of the defendant show that seats 2A and 2C had become defective on 27 January 2001 and that an attempt to fix an electrical fault on 29 January 2001 had failed. Further repairs were carried out on 2, 3 and 9 March 2001. At the time of the flight the seats were recorded as unserviceable.

When the plaintiff's seat was reclined the lumbar support component of his seat was not adjustable and he was thus confronted with a situation which was not contemplated as part of its normal operation. It was not the normal situation which as the flight supervisor put it is "the seat is all the same standard".

When the plaintiff himself reclined upon his seat he found a portion of the seat to be very hard. He drew this to a steward's attention but did not complain further.

Because of the discomfort occasioned by the hard portion of the seat, however, he looked around the first class cabin and observed that some seats were empty. The evidence establishes that there were in fact five empty seats other than the adjacent one forming part of the defective pair in which he was sitting. At this stage, however, the cabin lights had been dimmed and the other passengers had settled down for the apparent purpose of sleep. Moreover the vacant seats had been utilised to place individual belongings alongside other recumbent passengers. The plaintiff formed the view that he did not wish to be impolite and disturb other passengers, and he sought to settle down on his seat with the assistance of cushions and blankets.

This process made him more comfortable but he remained in discomfort in the mid portion of his body. Despite this discomfort he succeeded in going to sleep for approximately eight hours.

When he awoke he became aware of pain in his left leg. Subsequent investigation demonstrates that the probable cause of this was sciatica caused by the condition of the disc at the lumbo-sacral junction of the spine. The plaintiff contends the condition of his spine was aggravated by the unexpected and abnormal condition of the seat upon which he slept.

Since the flight the plaintiff has suffered ongoing and severe sciatica with significant consequences for his way of life (the sequence and nature of which I shall elaborate further below).

The plaintiff sues on the basis that while on the flight he suffered bodily injury caused by an accident within the meaning of Article 17 of the Warsaw Convention as amended at The Hague 1955 and by Protocol No. 4 of Montreal 1975 ("the convention") and as set out in Schedule 5 to the Civil Aviation (Carriers Liability) Act 1959 ("the Act"). Article 17 of the convention states:

"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

(a) that the plaintiff's account of the sequence of events upon the flight should not be accepted in critical respects;

(b) that the plaintiff has not proved that he suffered injury as a result of circumstances external to himself which occurred upon the flight;

(c) that the plaintiff has not proved circumstances which constituted an "accident" within the meaning of the convention;

(d) that if the plaintiff was injured on the flight he was either wholly responsible for such injury or partly responsible for such injury by reason of his own contributory negligence.

The defendant also takes issue with the plaintiff's case as to the severity and consequences of his alleged injury, and as to the appropriate amount of compensation.

Contested Aspects of the Sequence of Events upon the Flight

The defendant disputes that the plaintiff proceeded to his allocated seat unaccompanied. At the time of embarkation the forward doorway of the aircraft (which was adjacent to the rear of the first class cabin) was staffed by the chief steward Mr Hannan ("Hannan"). The cabin was staffed by a stewardess Ms Tan ("Tan") and the adjacent galley was staffed by a further steward who was available to provide service within the first class cabin. Of these cabin crew evidence was called from the stewardess and the chief steward only, although evidence was also called from Mr Rodrigues the in-flight supervisor. In addition evidence was called from Mr Saidin, an aeronautical engineer who was the defendant's Deputy Technical Services Manager at the time of the flight.

The evidence of Ms Tan was that it was the usual but not invariable practice to escort first class passengers to their allocated seat. It was the evidence of Hannan that there was no procedure prescribed in writing but it was the usual practice to accompany first class passengers to their seat. Neither Hannan nor Tan have a recollection of the manner in which the plaintiff in fact became seated in the cabin. Twelve passengers embarked into the first class cabin before the flight. The evidence of usual practice does not cause me to reject the direct evidence of the plaintiff as to what occurred. Ms Tan's evidence contemplated the possibility that passengers might be difficult to manage and in addition it is possible she was taken up with another passenger when the Plaintiff entered the cabin. I accept the Plaintiff's evidence that he proceeded to seat 2H alone and did not sit in the seat allocated to him because it was already occupied.

The defendant next contests that the plaintiff was invited to sit in the adjacent seat across the aisle. It is said by the cabin crew witnesses that they would not seat a passenger in a seat other than that allocated to him unless by agreement with another passenger. This they say is because they do not receive a list of passengers with their respective seat allocations until shortly before take-off. If a seat in an alternative position to that allocated to a passenger were provided to the passenger, it is possible that another person entitled to the seat might subsequently board the aircraft and complain. Mr Rodrigues described this practice as follows:

"If they are the first few coming in, we say 'just hold on, let me check up' unless I have the PIS, passenger information sheet which I will have to look at it [sic] and so 'okay, this seat is available'."

There is no evidence as to when on this occasion the cabin crew in fact knew that the total number of passengers within the cabin would occupy only 12 of the 18 seats, or when they knew the details of the seat allocation.

Moreover there is no satisfactory evidence as to whether the cabin crew did or did not know the seats in issue had been identified as unserviceable. Ms Tan and Mr Hannan concede, however, it is possible they knew this was so.

I am satisfied on the balance of probabilities that the plaintiff was invited to sit in the vacant and defective pair of seats. I am satisfied that he behaved in a polite manner and that he to drew the attention a steward to the fact that his allocated seat was occupied before being invited to sit in the alternative seats. This steward was either the steward based in the galley (who was not called to give evidence) or if it was by then known all passengers had entered the first class cabin, it may have been the chief steward.

There is no dispute that once the plaintiff sat in one of the defective seats no defect would become apparent until he attempted to operate the automatic controls.

Further, there is no real dispute that if the plaintiff drew the inoperability of the controls to the attention of a steward, such steward is likely to have directed the plaintiff's attention to the manual recline lever and either operated such lever or invited the plaintiff to operate it. I am satisfied that one of these alternatives occurred.

There is then a dispute as to whether the plaintiff stated to the steward that a portion of the seat after it was reclined felt "very hard". I am satisfied that he did. The plaintiff was challenged several times as to what was said and remained consistent in his answers. I accept his evidence as truthful and reliable.

It is said that as a matter of usual practice in the event of complaint by a first class passenger concerning a seat, staff would offer the passenger another seat. Whatever may be the usual practice I am satisfied that in the circumstances which prevailed at the relevant time this did not occur. Those circumstances as observed by the plaintiff were ones in which the other first class passengers had settled down to sleep and there was no fully vacant seat available i.e. no seat which was not occupied either by a passenger or by the belongings of a passenger in the adjacent seat.

The plaintiff's evidence that he then settled down on a seat which contained a very hard component causing him discomfort is also in issue.

In particular, the Defendant contests the fundamental question of whether the seat was in fact very hard and that this caused the plaintiff both initial and continuing discomfort.

In his evidence, the plaintiff identified the hard portion of the seat as being within the "middle" portion, which he made clear was the bottom portion of the seat situated between the back rest and the foot rest. He marked this portion of the seat upon a photograph utilising a cross. He repeatedly affirmed that it was this portion of the seat and not the upper portion which contained the very hard component.

There is no evidence that the bottom portion of the seat was in any way defective. Moreover, the defendant's witnesses gave evidence:

* The bottom cushion may theoretically become uncomfortable as a result of long term wear; but

* This cushion was relatively new, the seat having been installed nine months previously in 2000;

* Such cushions normally have a life of three to four years;

* Having sat upon bottom seat cushions of the type in issue on many occasions they had invariably found them comfortable; and

* First class passengers are sometimes very fussy but no complaints had ever been made to them that the bottom seat cushions of the type in issue were uncomfortable.

The plaintiff himself also gave evidence that he returned to Melbourne several days after the flight by way of two consecutive night flights with the defendant utilising a seat of the type in issue in a reclined position and suffering no comparable discomfort.

I am satisfied that the probability is that the bottom seat cushion was not defective when the plaintiff used it and in particular that it did not contain a "very hard" component.

The defendant contends that if this conclusion is reached the Court should also conclude that no relevant part of the seat contained a very hard component. I do not accept this conclusion having regard to the following matters:

* The plaintiff was as equally adamant that the seat contained a hard component as he was as to its location.

* The seat did contain a component which if it protruded when the seat was in the reclined position, might create a very hard element namely the lumbar support.

* It is admitted this component of the seat was defective at the relevant time in that it could not be manipulated or adjusted as it was designed and intended to be.

* The in-flight supervisor at one point acknowledged the potential for discomfort if the lumbar support were fixed in an elevated position.

"... If it goes in you feel that you are really going to sleep right through, but if it goes up you won't be able to sleep completely of course but good enough."

* The plaintiff experienced uncomfortable hardness when the seat was in a reclined position whilst he was lying upon it. Further, he utilised blankets and pillows interposing these between himself and the seat. These conditions give rise to the possibility the plaintiff did not accurately locate the source of the hardness.

* The plaintiff is approximately 6 feet 2 inches in height and experienced discomfort in the middle section of his body, i.e. between his upper thighs and his diaphragm.

* The portion of the seat causing discomfort was in proximity to the plaintiff's lower back. At one point he said:

"... I can't recall where my, say for example, buttocks would go in relation to that hard middle section, whether it was towards the front end of the middle section or the upper end of the middle section or indeed whether some of my lumbar region was in relation to above that middle section or even below it. Although I think below it would be very unlikely ..."

* The plaintiff said he did not know where the lumbar support ended and the seat began.

* The normal operation of seats of the type in question did not cause the plaintiff to experience discomfort or feel that a portion of the seat was "very hard". As I have said the plaintiff returned to Melbourne several days after the flight by way of two night flights utilising the same type of seat but experiencing no discomfort of the type in issue when the seats were placed in a reclined position.

* More than three years have elapsed since the flight and this fact may also be seen as supporting the possibility the plaintiff is confused as to some matters of detail.

Having regard to these matters in particular and the evidence as a whole I accept that it is more probable than not that the defective condition of the seat resulted in the protrusion of the lumbar support so that it was felt by the plaintiff as a very hard component in the seat.

The defendant next contends the discomfort might have been wholly alleviated by the use of further cushions. The plaintiff agrees that there was an abundance of cushions in the first class cabin and that the use of cushions had the potential to soften the hard surface upon which he lay. He says further, however, that piling up cushions beyond the extent to which he did in fact utilise them would have created its own problems of marked unevenness in the surface upon which he reclined. I accept the plaintiff made reasonable efforts to ameliorate the condition of the seat by use of cushions and I do not accept it has been established the discomfort in issue could have been fully rectified by the further use of cushions.

Did the Plaintiff Suffer Injury as a Result of External Circumstances upon the Flight?

There is agreement among the medical witnesses that prior to the flight the plaintiff suffered from degeneration of the L5/S1 disc. Since the flight the plaintiff has suffered from left sciatica related to abnormality of this disc, impairment and bulging of the disc, an annular tear and nerve root pressure.

The condition of the L5/S1 disc had caused the plaintiff trouble in 1989 when medical imaging demonstrated a sequestration of the disc. At that time he suffered left buttock pain which gradually resolved over a period of months after he undertook a period of swimming.

His evidence, which I accept, is that he suffered no further symptoms of back pain or sciatica until the flight. During the intervening period of 10 years he lived an active life and engaged in jogging, golf and domestic duties. He was able to travel frequently in planes without difficulty.

There is a very close connection between the plaintiff reclining in the defective and uncomfortable seat upon the flight and the onset of the symptoms of sciatica. This connection is both temporal and circumstantial in that not only did the events coincide but the discomfort was in the area of the lower back which is the area which produces sciatic pain.

The medical evidence establishes that it is possible symptoms of the type in issue could result from degeneration of the disc without external stress.

Nevertheless there was further evidence that it was also not only possible but probable that the symptoms were a product of the circumstances of the flight.

Mr Speck (an orthopaedic surgeon) said of the plaintiff's pre-existing degenerative condition:

"... the stage had been set and whenever he had the degenerate disc develop, if you like, and he had a episode but then in the intervening time between 89 and 2001 he'd not had symptoms he told me of so the potential was there if you like but nothing had happened to cause it."

Mr Speck's opinion was that the plaintiff's symptoms had their onset when he used the defective seat for travel and it is likely that the abnormal posture forced upon him by the seat produced his symptoms.

Professor Buchbinder (a rheumatologist) gave evidence which noted the coincidence between the occurrence of left sided sciatica and the plane trip, but did not express an opinion as to causal relationship.

Mr Dohrmann (a neurosurgeon) expressed the view that there was a relationship between the seat and the symptoms having regard to the temporal coincidence. He further stated:

" I would presume and expect that a long period in a seat that was damaged could have, as it were, been the straw that broke that particular disc's back."

Mr Nye (a neurosurgeon) accepted in cross-examination that if the seat were defective and uncomfortable and that affected posture, then given the temporal relationship between use of the seat and symptoms the probability is that the symptoms were precipitated by those circumstances.

Mr Elsner (an orthopaedic surgeon) expressed the opinion that the underlying condition was exacerbated on the plane trip by which he meant temporally aggravated.

The relevant principles concerning causation are summarised in the decision of the Full Court of the Federal Court in Schneider v Hoechst Schering Agrevo Pty Ltd[1]:

"Causation in an individual case can be established by a process of inference from circumstantial evidence. A finding of causal connection may be open without expert evidence to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible, as long as the expert evidence does not exclude a finding of causation: Commonwealth v McLean (1997) 41 NSWLR 389 at 410. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection as opposed to possible connection: Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29 at [83] to [91]."[2]

In Dahl & Anor v Grice[3] Gobbo J with whom Young CJ and Kaye J agreed stated:

" The review of the authorities leads me to reject the appellants' argument that in matters of bodily health, even outside common experience, it is incumbent on a plaintiff to prove the causal connection to the requisite degree of probability by evidence from the expert. It is plain that in such matters the courts have recognized that a possible cause may be elevated to a probable cause. There are a number of reasons why it is undesirable that the opinion as to causal connection be stated in terms of probabilities. In the first place, this is the role of the tribunal of fact and the ultimate task rests with the judge or jury, as the case may be. Secondly, it is inadmissible in the ordinary course for an expert to give evidence in a form that takes up the very ultimate issue that is the responsibility of the tribunal of fact. Though there are many exceptions in practice to the general rule as to not asking questions that by their terms call for an answer to the ultimate issue, it is a rule that is soundly based in its endeavour to reserve to the tribunal of fact the actual responsibility for the resolution of the ultimate issue. A third consideration is that there is inevitably much difference in the views of expert witnesses as to what constitutes a probability as opposed to a possibility, whether in terms of a particular case or simply as a matter of logic. There is the obvious danger that an expert when asked to provide an opinion as to whether a causal link exists may do so in terms of scientific proof that may be altogether too exacting for the degree of satisfaction necessary in a legal proceeding."

The wisdom of the last observation was illustrated in the present case insofar as the evidence in part referred to questions of epidemiological proof.

In my opinion the evidence of the plaintiff taken in conjunction with the opinion evidence to which I have referred justifies an inference of probable connection between the discomfort described by the plaintiff in the region of the lumbar spine and his subsequent condition and in particular the immediate onset of and continuing symptoms of sciatica.

Further, as I have already stated, I am satisfied the discomfort was caused by a very hard element in the defective seat namely the lumbar support which could not be adjusted.

Was the Plaintiff's Injury Caused by an Accident?

As the judgments of the Court of Appeal in Qantas Ltd & British Airways Plc v Povey[4] make clear the word "accident" as used in Article 17 of the convention has its ordinary meaning of a happening or event that is unforeseen or unexpected.[5] Nevertheless although the core concept is clear, Povey and other recent cases illustrate that the ambit of the concept may be difficult to define.

Povey affirms that the decision of the United States Supreme Court in Air France v Saks[6] is to be accepted as explicating the concept of accident[7] by way of the following propositions.

(a) "We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger."[8]

(b) "This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries."[9]

(c) "In cases where there is contradictory evidence, it is for the trier of facts to decide whether an 'accident' as here defined caused the passenger's injuries."[10]

(d) "But when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply."[11]

(e) "Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger."[12]

In Povey both Ormiston JA at [27] and Ashley AJA at [217] emphasised that the question of whether an unexpected happening has occurred is a question of fact.

The defendant contends that the circumstances which caused the plaintiff to be injured cannot be regarded as constituting an accident. I reject that contention.

(a) I am satisfied the plaintiff was injured as a result of a combination of circumstances which placed external stress upon his lumbar spine.

(b) I am satisfied such circumstances were unusual and unexpected in that:

(i) they involved the use by the plaintiff as a passenger of a defective seat which was not operating in its usual, normal and expected manner, and as a result contained a component which constituted an unusual, abnormal and unexpected component namely a lumbar support fixed in a position which rendered the seat uncomfortable by reason of a hard protrusion when such seat was placed in the fully reclined position;

(ii) the plaintiff was invited by the defendant's cabin crew firstly to use the defective seat and secondly to use it in the reclined position when the lumbar support could not be adjusted; and

(iii) the defendant's cabin crew did not relocate the plaintiff when the unexpected defect in the seat and the discomfort consequent upon it became apparent during the flight.

In my view the above circumstances taken individually or alternatively together constituted an accident or sequence of accidents whether that question be approached from the point of view of the ordinary reasonable passenger[13] or the "disinterested bystander who is apprised of all relevant circumstances."[14]

It is, however, necessary to address the following specific submissions which were made on behalf of the defendant:

(a) that the plaintiff was injured as a result of "static circumstances" and that such circumstances could not constitute an accident;

(b) that an accident must be constituted by the event immediately proximate to an injury and that there was no such accident involving the plaintiff;

(c) that an event must involve direct bodily impact to constitute an accident and that there was no such event involving the plaintiff;

(d) that an event comprising an accident must be limited and specific in duration and no such event has been established; and

(e) that the plaintiff's decision not to insist on an alternative seat was the true cause of such injury as he suffered.

I shall deal with each of these propositions in turn.

The sense in which the plaintiff was injured as a result of "static circumstances" is debatable. The plaintiff sat in the seat as a consequence of an invitation to sit in the seat other than that to which he had been allocated. The seat itself was subsequently adjusted from an upright to a reclined position with the lumbar support in a fixed position. In turn, the plaintiff himself moved from a seated to a reclining position.

As elaborated in argument, however, the defendant's proposition can be understood to refer to pre-existing circumstances i.e. circumstances which existed prior to the flight and in particular the inoperative controls. It was in substance submitted that if an aircraft contains a defect prior to the commencement of a flight then no matter how abnormal or unusual that defect may be, an interaction with it by a passenger will not be an accident. This proposition was exemplified in discussion with the bench to embrace the case where a passenger sits in a seat from which or adjacent to which a used hypodermic syringe has been left protruding by a previous passenger and overlooked during cleaning prior to the flight. The defendant's position is that if a passenger impaled herself or himself on such an object this would not be an accident.[15] Conversely, the defendant accepts that if a seat unexpectedly collapsed during flight and a passenger then injured herself or himself on some object left on the floor this would be an accident. I do not accept this distinction.

In my view abnormal circumstances within the cabin may, depending on the nature of those circumstances, be said to give rise to an unexpected event when a passenger interacts with them.

Further, the combination of abnormal circumstances and an invitation to a passenger by staff to direct exposure or interaction with those circumstances must be capable of being regarded as an accident.

Thus, the presence of a piece of glass or other foreign object in food situated on a aircraft can be said to give rise to an accident when the passenger is invited to consume it and in fact consumes it consequent upon such invitation.

In Olympic Airlines v Husain[16] the majority of the Supreme Court of the United States emphasised that an injury may result from multiple interrelated factual events.

"Petitioner's focus on the ambient cigarette smoke as the injury producing event is misplaced. We do not doubt that the presence of ambient cigarette smoke in the aircraft's cabin during an international flight might have been 'normal' at the time of the flight in question. But petitioner's 'injury producing event' inquiry - which looks to 'the precise factual `event' that caused the injury' - neglects the reality that there are often multiple interrelated factual events that combine to cause any given injury ... In Saks, the Court recognised that any one of these factual events or happenings may be a link in the chain of causes and - so long as it is unusual or unexpected - could constitute an 'accident' under Article 17. ... Indeed, the very fact that multiple events will necessarily combine and interrelate to cause any particular injury makes it difficult to define, in any coherent or non-question-begging way, any single event as the 'injury producing event'."

The majority further elaborated this statement by reference to a hypothetical example formulated by reference to the action of cabin crew with respect to seating.

"An example illustrates why petitioner's emphasis on the ambient cigarette smoke as the 'injury producing event' is misplaced. Suppose that petitioner mistakenly assigns respondent and her husband to seats in the middle of the smoking section, and that respondent and her husband do not notice they are in a smoking section until after the flight has departed. Suppose further that, as here, the flight attendant refused to assist respondent and her husband despite repeated requests to move. In this hypothetical case, it would appear that, '[l]ooking to the purely factual description of relevant events, the aggravating event was [the passenger] remaining in his assigned ... seat and being exposed to ambient smoke, which allegedly aggravated his pre-existing asthmatic condition leading to his death.' ... To argue otherwise, petitioner would have to suggest that the misassignment to the smoking section was the 'injury producing event', but this would simply beg the question. The fact is, the exposure to smoke, the misassignment to the smoking section, and the refusal to move the passenger would all be factual events contributing to the death of the passenger."

Likewise on the facts in Husain itself the majority concluded:

"The exposure to the smoke and the refusal to assist the passenger are happenings that both contributed to the passenger's death."[17]

In the present case the invitation to the plaintiff to sit in a defective seat rather than the seat assigned him, the manual reclining of that seat in a manner which produced an abnormal and unexpectedly uncomfortable seat on which to recline, and the failure to rectify the abnormal situation and move the passenger when he identified the fact that the seat was very hard can all be said to have contributed to and constituted causes of the plaintiff's injury.

In the Deep Vein Thrombosis and Air Travel Group Litigation ("the DVT case")[18] Lord Phillips MR stated that he had no difficulty with the result in the decision at first instance in Husain but questioned the reasoning of the Court. His own analysis of the facts like that of the majority in the recent decision of the United States Supreme Court, emphasised that what was in issue was a complex incident.

"The refusal of the flight attendant to move Dr Hansen cannot properly be considered as mere inertia, or a non-event. It was a refusal to provide an alternative seat which formed part of a more complex incident, whereby Dr Hansen was exposed to smoke in circumstances that can properly be described as unusual and unexpected. The existence of the non-smoking zone provided the opportunity for Dr Hansen, if suitably placed within it, to avoid exposure to the smoke that threatened his health and, as it proved, his life. The direct cause of his death was the unnecessary exposure to the smoke. The refusal of the attendant to move him could be described as insistence that he remain seated in the area exposed to smoke. The exposure to smoke in these circumstances could, in my view, properly be described as an unusual or unexpected event. Whilst smoke in that part of the cabin was not itself unusual or unexpected, the same cannot be said of Dr Hansen's enforced exposure to that smoke."

In the present case the exposure of the plaintiff to a defective seat which caused discomfort to his back could, in the circumstances which I have described, properly be described as an unusual or unexpected event.

For the above reasons I do not accept firstly, that the plaintiff's case turns upon a static circumstance or secondly, that the existence of an element within it which may be described as a static circumstance prevents the circumstances as a whole from being characterised as involving an accident.

It was next submitted that the happening in issue must constitute the most proximate cause of any injury i.e. it must be the last link in any chain of causes. The judgment in Saks makes clear that this is not so at p.406 (see proposition (e) above at [60]).

It will of course, however, remain necessary to demonstrate that an accident was a proximate cause of the plaintiff's injury.[19]

In Husain the Supreme Court of the United States restated the plain meaning of the judgment in Saks in this regard:

"The Court emphasised that the definition of 'accident' should be flexibly applied after assessment of all of the circumstances surrounding a passenger's injuries. ... The Court further contemplated that intentional conduct could fall within the 'accident' definition under Article 17, an interpretation that comports with another provision of the Convention. As such, Saks correctly characterised the term 'accident' as encompassing more than unintentional conduct. The Court focussed its analysis on determining 'what causes can be considered accidents', and observed that Article 17 'embraces causes of injuries' that are 'unexpected or unusual'. ... The Court did not suggest that only one event could constitute the 'accident', recognising that '[a]ny injury is the product of a chain of causes'. ... Thus, for the purposes of the 'accident' inquiry, the Court stated that a plaintiff need only be able to prove that 'some link in the chain was an unusual or unexpected event external to the passenger."

In Povey Ormiston JA at [15] and Ashley AJA at [104] and [105] affirmed the last referred to principle stated in Saks. Ormiston JA stated further:

" ... all [O'Connor J] was recognising was that there could be a series of events and a set of circumstances which might lead to injury, but that amongst the facts and circumstances leading to the injury there should be an event 'external to the passenger which could be characterised as unusual or unexpected'."[20]

In the absence of a closely interrelated set of circumstances it may well be difficult to establish that an accident was a cause of injury if it was not the most proximate cause. In my view, however, the present case is one of closely interrelated circumstances and did involve a series of events "external to the passenger which could be characterised as unusual or unexpected."

It was next submitted that an event must involve "direct impact" with a passenger in order to constitute an accident. I record that in my view the events in issue did involve a direct impact upon the plaintiff's back by the defective seat.

Moreover, neither the terms of the convention nor the judgment in Saks warrant the principle contended for.

It was further submitted that an accident must comprise a specific event of limited duration. In my opinion an accident may be comprised by an identifiable event and not merely a specific incident of short duration. There is nothing in the terms of the convention or the decision in Saks to suggest otherwise. Thus an injury suffered during the course of extended exposure within an aircraft after it crashed at a remote location or as a result of the extended application of a ligature by a terrorist would be an injury caused by an accident even though it may not be possible to specify at what point in the relevant period of time a passenger suffered from the particular physical consequence in issue.

As the Master of the Rolls stated in the DVT case:

"However, the requirement of flexibility and a purposive approach means that one cannot preclude the possibility that activity that continues for a period, such as circulating contaminated air, could amount to an accident for the purposes of Article 17."[21]

In the present case I am satisfied the plaintiff suffered injury during the course of reclining on the defective seat while he was asleep for an extended period. These circumstances do not preclude a finding that the plaintiff's injury was caused by an accident.

It was further submitted that the plaintiff's decision not to insist on an alternative seat once he ascertained that the reclined seat contained a very hard component, broke the causal connection between any accident and his injury. I do not accept the plaintiff's reaction was other than within the ordinary range of behaviour as a consequence of the circumstances with which he was confronted. It did not constitute a new intervening cause which broke the causal connection between those circumstances and his subsequent injury.[22]

For the above reasons I am satisfied that the plaintiff's injury was caused by an accident within the meaning of Article 17 of the convention .

"1. In the carriage of passengers and baggage, if the carrier proves that the damage was caused by or contributed to by the negligence of the person suffering the damage the Court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability."

S39 of the Act in turn provides for the reduction of damages "to such extent as the court thinks just end equitable heaving regard to the share of the passenger in the responsibility of the damage."

It is contended the plaintiff contributed to his injury:

(a) by failing to insist upon the provision of an alternative seat when he experienced discomfort; and

(b) by the inadequate utilisation of cushions.

The plaintiff's evidence was that when confronted with the uncomfortable seat it did not occur to him that to sleep upon it might cause him injury. Given that he had experienced no lower back pain or sciatica for some 10 years and lived an active life, I am not persuaded this opinion was unreasonable on his behalf and that he was negligent in failing to foresee the possibility of injury. The plaintiff is and was a specialist in pharmacology and not in the treatment of degenerative conditions of the spine. Moreover, the plaintiff was, as the defendant knew in the course of a long trip from Melbourne to Paris, requiring to him embark at Kuala Lumpur after he had been awake some 17 hours. The judgment that might reasonably be expected of him was of a tired medical practitioner having no particular expertise in the area under consideration. The circumstances were in no way similar to those which arose in Husain where Dr Hansen knew his medical history of asthma included a near fatal attack in Las Vegas and breathing trouble elsewhere when confronted with circumstances such as those in the aircraft.

In my view it was not unreasonable of the plaintiff in the present case to identify the problem with the seat to the steward but to complain no further. He may with hindsight have been unduly polite towards and considerate of his fellow passengers, but that does not amount to contributory negligence.

Likewise, for reasons I have already stated, I am not satisfied he was negligent in the manner in which he made the seat "more comfortable" by the use of cushions but failed to fully overcome the discomfort.

The plaintiff is aged 46 having been born on 6 March 1958. He is married with a son aged 5 years and a daughter aged 15 months.

He is employed at Monash University as Professor of Medicine and held the position of Associate Professor at the date of the accident. As such he teaches both undergraduate and postgraduate medical students and undertakes research in his specialty which is cardiovascular pharmacology.

He teaches four to six hours a week and undertakes both patient based clinical research and some laboratory research. He also co-ordinates and makes applications for funding for his research group.

In addition to his university position he is employed at the Alfred Hospital where he provides advice to other practitioners on drug related matters and provides consulting services to patients.

In addition, he provides consulting services outside the hospital to two commercial bodies. This involves giving lectures locally and internationally and sitting on a series of advisory boards and steering committees concerned with his specialty. This work involves between 10 to 16 overseas trips a year.

Prior to the accident the plaintiff enjoyed excellent health and despite an episode of buttock pain in 1989 had been free of sciatica for some 10 years. He enjoyed jogging, the occasional game of golf, frequent overseas travel and a normal family life with a small child. He was able to drive a car and to enjoy a normal social life, attending the cinema, visiting restaurants and generally undertaking day to day activities with no inhibition with respect to his back.

When he awoke in the aircraft following the accident the plaintiff felt immediate pain in his left calf. This improved somewhat when he arrived in Paris and walked between air terminals. It worsened when he then flew on to Monte Carlo and caused increasingly severe pain as he first gave a lecture in a standing position and then participated in a panel discussion in a sitting position. At this stage both his thigh and calf were painful. Subsequently he rested in his hotel and then found a pattern emerging. This was that sitting made the pain worse but standing and walking reduced it, while lying down was better still.

He was able to fly back to Melbourne a few days later without undue difficulty but upon his return he went for a jog believing he was suffering from muscle stiffness. This caused severe shooting pain from his buttocks to his toes. At this stage he realised he was probably suffering from sciatica and took painkilling and anti-inflammatory medication.

The pain increased somewhat and the distribution spread. He found driving particularly uncomfortable but kept working hoping his symptoms would reduce.

On 14 March 2001 he flew from Melbourne to Orlando, Florida where he attended a meeting of the American College of Cardiology. Before this flight he had a "corridor consult" with Professor Buchbinder, a colleague of his. She suggested medication with anti-inflammatories and steroids, and advised that if things did not settle down the plaintiff should make a formal appointment to see her.

While in Florida the plaintiff's symptoms worsened and the defendant contends that it is the Florida trip which should be seen as the real cause of the plaintiff's subsequent symptoms. I accept the plaintiff's evidence that the nature and distribution of his symptoms were established prior to his trip albeit that they worsened during the trip and he returned to Melbourne a day earlier in order to obtain treatment. This view is consistent with the medical evidence as a whole including the specific opinion of Mr Elsner who was called on behalf of the defendant.

On returning to Melbourne the plaintiff was admitted to Cabrini Hospital on 21 March 2001 and remained an in-patient until 29 March. A MRI scan was performed and on 22 March a CT guided nerve block of the left L5 and S1 nerve roots was undertaken by way of injection.

Thereafter the plaintiff was treated with morphine and anti-inflammatory medication and the pain improved. After discharge from hospital he had three weeks bed rest at home. On 18 April he saw Mr Speck, who recommended that he undertake physiotherapy. This he did but neither the initial treatment by way of physiotherapy or treatment with acupuncture gave him any significant relief.

He returned to work in mid April initially on a part time basis and then after two weeks on a full time basis. He was advised to minimise stress to his back and not to travel. As a result he missed a number of engagements as a speaker and participant in public proceedings involving his specialty.

He adjusted his daily habits and commenced walking to work rather than driving. He found that he could not travel comfortably by car unless he lay on the back seat. He altered his work habits to minimise the time spent sitting and maximise the time spent standing.

He was treated with a variety of medication and with an epidural injection. He became a regular user of panadeine forte. In early June 2001 he recommenced travel and found that if he was able to obtain a flat bed seat he was relatively comfortable. In September 2001, however, he travelled to Washington in the United States and experienced a flare-up of symptoms. He again consulted Mr Speck and was again advised to treat his symptoms conservatively and abstain from travel for a period. He followed this advice and again was unable to attend a series of meetings which he otherwise would have. He continued with medication and conservative modification of his behaviour.

During 2002 the plaintiff's symptoms fluctuated somewhat but essentially presented continuing difficulties if he assumed a sitting position. In January 2003 he consulted Mr Dohrmann, and after a further MRI was advised as to the potential benefits and risks of a discectomy.

Subsequently he had an episode of exacerbated symptoms and booked in for surgery in March 2003.

He did not proceed with this, however, for two reasons. Firstly, he had an episode of nausea on a plane which caused him to dry retch and paradoxically this brought on an episode completely free of sciatic symptoms. Secondly, in early 2003 the plaintiff obtained assistance from a Mrs Grundy, a physiotherapist who provided him with a set of hyperextension exercises which he has since found useful in alleviating episodes of pain. Both these circumstances encouraged the plaintiff to believe his condition might improve.

Since March 2003 the plaintiff has again consulted with Mr Speck and Mr Dohrmann and he currently intends to continue to manage his symptoms conservatively.

He takes four to eight panadeine forte a day, together with anti-inflammatory medication if his symptoms flare up. He manages these symptoms by avoiding prolonged sitting and otherwise putting up with them. He works substantially in a standing position and as a colleague confirmed in evidence he attends meetings and the like in a standing position when others sit. He remains unable to drive. He is unable to go to the cinema or sit comfortably at a restaurant. He is unable to play vigorously with his young children or assist by lifting them. He walks to work but can no longer jog or swim or enjoy an occasional game of golf.

In summary he manages but does so with continuing limitation, discomfort and potential pain in almost every aspect of his day to day life. As his wife said in evidence his life has undergone quite a dramatic change. In evidence he described the symptoms caused by sitting as follows:

"... I feel, initially pain in the upper part of the leg, so the bit between the hip and the knee. ... But that's the initial symptom after, as I say, about three minutes of sitting. If I was to sit any longer, which, as mentioned I'm sometimes forced to do, like taking off on an aeroplane, it starts going down the leg, below the knee and it - when it's really bad, it goes into the toes and also along with that I get buttock pain. So ... it's often but not always, a kind of step wise progression, starting in the thigh, back of the leg region and proceeding downwards. Yes. How bad is it?---It depends on how long I sit basically and - it's not that I'm stupid enough to sit for too long and as mentioned, I suffer then but more importantly, suffer the consequences for some days afterwards."

The opinion of Mr Dohrmann is that in general terms the prognosis for sciatica due to disc lesion is reasonably favourable and one could expect the plaintiff's symptoms to slowly improve in the future. This is essentially due to the ageing process and ongoing flattening of the disc.

There is a residual possibility of further deterioration which would require surgery. Overall, however, there is a reasonable chance that in five to 10 years' time the plaintiff will be less symptomatic and less restricted than at present.

Mr Nye is of the view that a degree of stability has been achieved but there is potential for further improvement in the plaintiff's symptoms.

Mr Speck expressed the view that there is unlikely to be a further lasting deterioration in the plaintiff's symptoms.

When Mr Elsner saw the plaintiff in 2002 he also formed the view that the plaintiff might improve.

The medical evidence as a whole supports the view that prior to the accident there was a risk of approximately 5% that the plaintiff would develop sciatica irrespective of trauma and that order of general risk as to further deterioration remains.

Evidence was also called from Professor Buchbinder as to the plaintiff's initial treatment. No evidence was called from Mr Myron Rogers, whom he also consulted in 2001, or from Mr O'Brien, who treated him in 1989.

In my opinion Mr Dohrmann's opinion should be accepted. It is substantially consistent with that of Mr Speck and Mr Nye. It is founded upon a series of consultations with the plaintiff and upon examination of a series of medical imaging reports.

It follows that I accept the plaintiff is faced with the probability of continuing symptoms but the opinion of Mr Dohrmann (supported by the balance of medical opinion evidence generally) is that his condition is likely to improve somewhat and his symptoms reduce over the next five to 10 years.

It is unlikely that he will require surgery but it is likely that his day to day life will be materially affected for many years. The effects of his injury will continue to impact upon both his private life and his professional life. He is, in my view, likely to keep working but this will involve a daily discipline of management, a daily limitation of activity, a daily increment of discomfort, and recurrent pain.

Having regard to all these matters I assess general damages for pain and suffering and loss of enjoyment of life in the sum of$120,000.

The plaintiff also claims for loss of earnings to date. Although I am satisfied the plaintiff did not attend a series of overseas conferences and meetings in 2001 as a result of his injury, I am not satisfied on the basis of his oral evidence and his income taxation returns that he suffered a net loss of income as a result.

The plaintiff next claims for past medical and life expenses which I accept in the sum of $10,998.50.

Insofar as future loss of earnings is concerned I am not satisfied a quantifiable risk of future loss of earnings has been established.

I am, however, satisfied the plaintiff will incur continuing medical costs as part of the price of the management regime which will enable him to keep working. These costs will involve as a minimum medication, recurrent assessment of his condition, and ongoing medical and physiotherapy advice. I assess these costs discounted for present value in the sum of $15,000. In my view the probability of such costs is very high.[23]

In summary I assess the plaintiff's damages as follows:

(a) General Damages:

$120,000;

(b) Past Medical Expenses:

10,998.50;

(c) Future Medical Expenses:

$15,000.

Other Matters

In final submission an attack was made on behalf of the Defendant upon the credibility of the plaintiff's evidence by reference to specific aspects of the evidence such as an email sent by him in 2001. I have had regard to each of the matters relied on but in my view none of them materially detract from my overall impression of the plaintiff's honesty and reliability. Some of the matters relied on are in my view misconceived e.g. the allegedly differing accounts of the 1989 episode, and others depend on an artificial and unpersuasive view of the implications which can be drawn from prior statements made in particular contexts.

Reliance was also placed by the defendant upon the fact that an in-flight survey was carried out on the flight. It was said this led to the probability the staff would be on their toes and observe standard procedures. I have had regard to the evidence of the in-flight survey (although the survey itself was not produced to the Court). The evidence does not change my view of the probable course of relevant events.

For the above reasons there will be judgment for the plaintiff.

[5] Ormiston JA [4], Chernov JA [43]

[7] Ormiston JA [6], Chernov JA [43], Ashley AJA [93]

[15] cf Waxman v CIS Mexicana de Aviacion SA de CV 13 F Supp 2nd 508 (SD) NY 1998 digested in Shawcross & Beaumont: Air Law 4th ed. vol. 1 at p.645.

[16] 540 US (2004) p.8 per Justice Thomas

[19] cf Margrave v British Airways 643 F Supp 510 (SD) NY (1986)

[22] cf Mahony v J. Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at 529 although the question is not governed by the law of negligence.

[23] cf Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643

At a glance

Court

Decision date

Before

Source

Judgment (187 paragraphs)

Parties

Cases Cited (3)